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As is publicly known, the Directorate General of Migration (DIGEMIN) Interior Ministry has canceled the residence of British priest Paul Michael John Thomas Mac Auley, granted in 2006, arguing that it has participated in activities affecting public order. Ministerial Resolution No. 0571-2010-IN, says Mac Auley violated Article 63 of the Aliens Act.
The action by the government seeks to protect a constitutional law is the legal and public policy. According to the Article 63 paragraph 1 of Legislative Decree No. 703, should the cancellation of the residence in the foreign country that engages in acts against public order inside. Under this, the Interior Ministry decision contained in the Ministerial Resolution No. 0571-2010-IN/1601, dated June 11, 2010, argues that this would affect the "internal public order."
However, the authors of the resolution forget that the marches and protests in favor of environmental protection, are not illegal and unconstitutional acts, but on the contrary, are acts which enjoy constitutional protection and coverage. Freedom of assembly is a fundamental constitutional right recognized in Article 2.12 of the Constitution, and that is the ability of a group of citizens to come together temporarily with a common goal. At the political level, freedom of assembly is manifested in activities such as public demonstrations, protest marches, rallies supporters made with political or electoral purposes [1].
Certainly it is no secret that these social protests or recur often end in violence and vandalism. In such cases we must be aware that social protest as a manifestation and realization of the constitutional right of assembly, is subject to limits. In fact, that social protest is considered as a legitimate manifestation of the right to freedom of assembly, and therefore be recognized and protected by the legal and constitutional, must be exercised peacefully and unarmed, and do not affect fundamental rights third. [2]
The resolution of the Ministry of Interior states that "Paul Michael John Mc Auley is chairing the Association Environmental Network Loretana registered on February 10, 2006, and since the creation of this association has been participating in various activities of a political, such as protest marches through the main streets of the city of Iquitos against the Peruvian government and other acts constituting disorderly conduct the same as those detailed in Crowded. "
As can be seen, all the resolution says is that Paul McAuley has been involved in protest marches, but not objectively proven, involvement of the public. Participation in protest marches per se does not threaten public order. In addition, the resolution concerning analysis does not refer to acts of violence and vandalism. As noted in the TC "reasons that are alleged to prohibit or restrict the right of assembly, should be" tested. " No be addressed, therefore, of mere suspicion, uncertain dangers, let alone insufficient arguments, capricious or arbitrary, but objective reasons, adequate and well-founded "(STC 4677-2004-PA/TC, fj 18).
TC is more along the English Tc reflects the principle of favoring the right of assembly, which states that "if there is uncertainty about whether such an exercise in a particular case may produce adverse effects to public order and endangering persons and property and other rights and values \u200b\u200bworthy of constitutional protection, those should be solved with the application of the principle or criterion favoring the right of assembly (please libertatis), but suffice to justify its ban modulation or mere suspicion or mere possibility of the occurrence of such results [3]. In this case, application of this principle, we conclude that no violation or threat to public order.
On the other hand, we know that rights are not absolute, can be limited when this is through the protection of other constitutional right or a constitutional legal right worthy of protection. In this case, the central tension and conflict would occur between public policy and constitutional legal right and across a set constitutional rights which emphasizes the right of assembly. The central question for purposes of constitutional analysis is whether the protection of public order justifies and legitimizes the involvement of constitutional rights as the right of assembly (article 2.12 of the CP).
However, in the unlikely event that actually exercised the right of assembly by Paul McAuley had really affected public order, the test of proportionality (and specifically the sub principle of need) provides which will only be constitutional limitation of this right, there is no other way to obtain protection from legal right to be protected. In other words, if you really want to keep Paul Mc Auley not participate in activities that jeopardize public order, there are other ways to accomplish the same thing without having to resort to the cancellation of his residence. In other words, there are other ways to achieve the same without sacrificing the exercise of constitutional rights, such as limiting their participation in protests before its cancellation.
The conclusion is evident, Paul Mc Auley participation in peaceful social protest marches is the legitimate exercise of the constitutional right of assembly and analyzed the resolution has not shown that there has been an objective and proven involvement. Also the measure is unconstitutional because it does not pass the test of proportionality, becoming arbitrary. What does affect public policy [4], ie the normal activities of society is the contamination of the environment and more specifically the contamination of natural resources to ensure the survival of native communities, the latter made , which has led to precisely the emergence of social protest in which he has participated Paul Mc Auley.
Similarly, the decision of the Ministry of Interior committed other violations of constitutional rights related to due process and effective judicial protection. We refer to the right the reasons for any decision not only judicial but administrative, especially when important constitutional rights are affected, and the right to defense, since it was never allowed to defend themselves.
matter of comment resolution, not only cancel the residence, but it gives a period of 7 days for Paul Mc Auley leave the country. To this violation, which affects the right to freedom of movement, accounted for the filing of habeas corpus, in order that a judge examine the constitutionality of the cancellation of residence and deportation. The same appeal was decided by the First Civil Court - Headquarters, on 7 July of this, acknowledging the merits of the injunction and ordered the Interior Ministry to suspend the implementation of Ministerial Resolution No. 0571-2010.
(Roel Luis Alva)
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[1] Carlo Magno Salcedo Paintings, The constitutional right of assembly and protest, in Gaceta Constitutional Law Gazette, Lima, Volume 19, July 2009, pg. 96.
[2] Ibid.
[3] Constitutional Court Judgement English. N º 195/2003, 7 basis. Quoted by the sentence handed down in the exp. N º 4677-2004-PA/TC, fj 18.
[4] According to TC "Public order is the set of values, principles and patterns of political behavior, economic and cultural in the broadest sense, the purpose is the conservation and proper development of life co-existential" Exp N º 3283-2003-AA/TC, fj 28.
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